T-5238-81
The City of Melville, the Town of Watrous,
Transport 2000 Saskatchewan, and the Attorney
General of Saskatchewan (Plaintiffs)
v.
Attorney General of Canada, Minister of Trans
port for Canada, Via Rail Canada Inc., Canadian
Pacific Limited, and Canadian National Railways
(Defendants)
Trial Division, Collier J.—Regina, November 9,
10 and 11, 1981.
Practice — Motions to strike pleadings — Governor in
Council on its own motion and pursuant to subs. 64(1) of the
National Transportation Act varied Orders of the Canadian
Transport Commission, discontinuing certain passenger-train
services — Action alleges that Order in Council is invalid
because there was no timely or relevant order of the Commis
sion determining the economic viability of the service or
whether it should be continued in the public interest; the Final
Plan was not an order of the Commission; and the Governor in
Council failed to comply with the rules of procedural fairness
— Order in Council is also impugned for failure to comply
with s. 5 of the Statutory Instruments Act — Whether the
statement of claim discloses a reasonable cause of action —
Motions allowed — National Transportation Act, R.S.C.
1970, c. N-17, ss. 48, 64(1) — Statutory Instruments Act, S.C.
1970-71-72, c. 38, s. 5 — Railway Act, R.S.C. 1970, c. R-2, s.
260(8).
Motions are brought by the defendants, the Attorney Gener
al of Canada and Via Rail Canada Inc., to strike out the
statement of claim on the grounds that no reasonable cause of
action is disclosed. The defendant companies provided trans
continental passenger-train service pursuant to Orders of the
Canadian Transport Commission. The Governor in Council on
its own motion and pursuant to subsection 64(1) of the Nation
al Transportation Act amended and varied the Commission's
Orders, discontinuing certain passenger-train services. Subsec
tion 64(1) provides that the Governor in Council may at any
time, either upon petition of any party or of his own motion,
vary or rescind any order of the Commission. The action seeks
a declaration that the Order in Council is invalid because the
Cabinet exceeded its jurisdiction. The plaintiffs submit that
there was no timely or relevant order of the Commission
determining either the economic viability of the service in
question or whether it should be continued in the public
interest. It was said that the Commission had not fulfilled its
duty under subsection 260(8) of the Railway Act to reconsider
the Orders before the expiry of five years from their date, and
therefore the Orders were spent and Cabinet could not vary
them. It was also submitted that the Final Plan was not an
order of the Commission and therefore could not be varied or
rescinded pursuant to subsection 64(1). The plaintiffs argued
that the Governor in Council failed to comply with the rules of
procedural fairness in that in operating on its own initiative in
the absence of a timely and relevant determination of the public
interest, it did not have any material or information on which to
base its decision. The defendants say that the only condition
precedent is that before Cabinet varies or rescinds a Commis
sion order, there must be a Commission order in existence. The
plaintiffs say that the order sought to be varied must be timely
and relevant; that the Cabinet can have no greater jurisdiction
than the Commission had in making the orders under review;
and that if any of the Commission's orders are invalid then the
Cabinet has no jurisdiction to vary them. Finally, the plaintiffs
submitted that the Order in Council was ineffective because
there was not timely compliance with section 5 of the Statutory
Instruments Act. The question is whether the statement of
claim discloses a reasonable cause of action.
Held, the motions are allowed and the statement of claim is
struck out. There is no force in the plaintiffs' argument that the
Orders were not timely or relevant. Nothing in the statutes
provides that the Orders cannot be varied after five years.
Further, subsection 64(1) specifically permits the Cabinet to
vary or rescind "at any time". On a fair reading of Order
R-26520, it is clear that the Final Plan is incorporated into the
Order and can therefore be varied under subsection 64(1).
With respect to the submission that the Cabinet Order was
made without any hearing, the answer is found in the Inuit
case. The Cabinet does not have to go through that kind of
procedure. There are no requirements of "procedural fairness"
when Cabinet is exercising its powers under subsection 64(1).
As to the contention that the discretion given in subsection
64(1) is not completely unfettered, provided the Cabinet is
acting within its jurisdictional boundaries, its discretion is
"complete". The statement of claim does not disclose a reason
able cause of action based on the jurisdictional attacks on the
validity of the impugned Order in Council. The provisions
requiring timely transmission to the Clerk of the Privy Council
do not make the Order in Council ineffective.
Carota v. Jamieson [1977] 1 F.C. 19, applied. Attorney
General of Canada v. Inuit Tapirisat of Canada [1980] 2
S.C.R. 735, applied. Montreal Street Railway Co. v.
Normandin [1917] A.C. 170, applied.
MOTIONS.
COUNSEL:
Richard Scott, Q.C. and Karen Simonsen for
plaintiffs City of Melville, Town of Watrous
and Transport 2000 Saskatchewan.
Peter Glendinning for plaintiff Attorney Gen
eral of Saskatchewan.
E. A. Bowie, Q.C. and I. G. Whitehall, Q.C.
for defendants Attorney General of Canada
and Minister of Transport for Canada.
Marshall Rothstein, Q.C. and M. Huart for
defendant Via Rail Canada Inc.
John Bowles and Christian Wendlandt for
defendant Canadian Pacific Limited.
Grant Nerbas and Paul Antymniuk for
defendant Canadian National Railways.
SOLICITORS:
Thompson, Dorfman, Sweatman, Winnipeg,
for plaintiffs City of Melville, Town of
Watrous and Transport 2000 Saskatchewan.
Rendek, Toews, Kaufman, Regina, for plain
tiff Attorney General of Saskatchewan.
Deputy Attorney General of Canada for
defendants Attorney General of Canada and
Minister of Transport for Canada.
Aikins, MacAulay & Thorvaldson, Win-
nipeg, for defendant Via Rail Canada Inc.
Legal Department, Canadian Pacific Limited,
Winnipeg and Montreal, for defendant
Canadian Pacific Limited.
Legal Department, Canadian National Rail
ways, Winnipeg, for defendant Canadian Na
tional Railways.
The following are the reasons for judgment
delivered orally in English by
COLLIER J.: I regret it has been necessary to
resume these proceedings on Remembrance Day,
November 11. Certainly, no disrespect to the tra
ditions and why this holiday is observed, was
intended. These legal matters are very urgent and
of general public concern and interest.
My decision is that the motions to strike out the
actions must succeed.
Here are my reasons:
There are four motions brought pursuant to
Rule 419(1)(a). The defendants, the Attorney
General of Canada and Via Rail Canada Inc.,
(hereinafter "the Attorney General" and "Via")
moved to strike out the statement of claim against
all defendants on the grounds that no reasonable
cause of action is disclosed. The other defendants,
(hereinafter "CP" and "CNR") bring similar
motions to strike out the action as against them
selves only.
The principles to be applied in dealing with
summary procedures of the kind involved here
have been laid down and followed for many years.
The pleading should only be struck out in plain
and obvious cases; or (as has been said in other
words) where, taking the statement of claim at its
face, the claim is obviously unsustainable or
cannot succeed. I cited a number of relevant
authorities in Carota v. Jamieson [1977] 1 F.C.
19. I shall not repeat them here.
Mr. Justice Estey, giving the judgment of the
Supreme Court of Canada in The Attorney Gener
al of Canada v. Inuit Tapirisat of Canada [1980]
2 S.C.R. 735, put the matter this way, at page
740:
On a motion such as this a court should, of course, dismiss the
action or strike out any claim made by the plaintiff only in
plain and obvious cases and where the court is satisfied that
"the case is beyond doubt" ....
For the purposes of the motions before me, the
facts alleged in the statement of claim are assumed
to be admitted and true.
The Canadian Transport Commission ("the
C.T.C."), pursuant to statutory powers, issued cer
tain Orders in respect of passenger-train services.
The Orders relied upon by the plaintiffs are as
follows:
R-22125, dated January 29, 1976.
R-22346, dated February 26, 1976.
R-26520, dated March 8, 1978, purporting to
implement the Final Plan.
R-30914, dated May 29, 1980.
R-31300, dated August 14, 1980.
I set out paragraph 11 of the statement of claim:
11. By virtue of the orders, decisions and recommendations
referred to in the preceding paragraphs VIA, CNR and CP,
during the year 1981 to date, provided daily east-west passen
ger train service to and from Montreal/Toronto-Winnipeg-Sas-
katoon-Edmonton-Jasper-Vancouver, "The Supercontinental",
across the Province of Saskatchewan through the Plaintiffs, the
City of Melville and the Town of Watrous utilizing CNR's
main line track.
On August 6, 1981, the Governor in Council, on
its own motion, and pursuant to subsection 64(1)
of the National Transportation Act, R.S.C. 1970,
c. N-17, amended and varied the C.T.C. Orders
set out above.
I think it can be said the Governor in Council is,
for practical purposes, the Federal Cabinet. The
effect of the Order in Council of August 6, 1981,
is to discontinue certain passenger-train services
which presently are available in certain communi
ties in Saskatchewan. Those communities include
the two plaintiffs, the City of Melville and the
Town of Watrous.
The cuts in that particular service are to be
effective November 15, 1981.
The Order in Council, cutting back the services,
was registered, pursuant to the Statutory Instru
ments Act, S.C. 1970-71-72, c. 38, on November
3, 1981. It was published in the Canada Gazette
on November 6, 1981 [SOR/81-892].
This action was commenced on October 23,
1981.
The plaintiffs seek a declaration that the August
6, 1981 Order in Council is invalid and a nullity
because the Cabinet exceeded its jurisdiction. The
grounds are set out in paragraph 14 of the state
ment of claim:
14. In so proceeding the Governor General acted outside of its
jurisdiction and in excess of its powers in that:
(a) It did not comply with a condition precedent to the
exercise of its jurisdiction because there was no timely or
relevant order, decision, rule or regulation of the Commission
determining either the economic viability of the passenger-
train service in question, or whether it should be continued
nonetheless in the public interest.
(b) The Final Plan being only a recommendation of the
Commission to the Minister in October, 1977, is not an order
or decision of the Commission and therefore cannot be varied
or rescinded pursuant to Section 64(1) of the National
Transportation Act.
(c) Its purported attempt to issue directions to VIA and
CNR respecting those passenger-train services being pro
vided by VIA pursuant to the Final Plan is invalid and
unenforceable in light of the continuing provisions of Com
mission Orders R-26520 and R-30914.
(d) It failed to comply with the rules of procedural fairness in
that, in operating on its own initiative, in the absence of
timely and relevant determination of the public interest, it
did not have any material or information on which to base its
decision.
It is said, alternatively, the Order in Council is
ineffective, because there was not timely compli
ance with section 5 of the Statutory Instruments
Act. The statement of claim asserts non-registra
tion in accordance with section 9 of the statute.
But, the Order in Council was registered after the
statement of claim was filed. The parties agreed
that section 5 was now the appropriate provision in
respect of the argument as to whether the Order in
Council is ineffective.
Before turning to consideration of the argu
ments and counter-arguments on the motions to
strike, I say this: no further facts, which might be
adduced on the discovery processes or at trial,
would, in my opinion, assist in determining the
issues before me. The situation here is akin to the
Inuit case, where, at page 741, this was said:
The issue so raised requires for its disposition neither additional
pleadings nor any evidence. I therefore agree with respect with
the judge of first instance that it is a proper occasion for a court
to respond in the opening stages of the action to such an issue
as this application raises.
At the centre of the issues here are the powers of
the Governor in Council as set out in subsection
64(1) of the National Transportation Act:
64. (1) The Governor in Council may at any time, in his
discretion, either upon petition of any party, person or company
interested, or of his own motion, and without any petition or
application, vary or rescind any order, decision, rule or regula
tion of the Commission, whether such order or decision is made
inter partes or otherwise, and whether such regulation is gener
al or limited in its scope and application; and any order that the
Governor in Council may make with respect thereto is binding
upon the Commission and upon all parties.
Central, also, is the Inuit decision and what was
there said about subsection 64(1).
The facts in the Inuit case were, briefly, as
follows:
Bell Canada applied to the Canadian Radio-
television and Telecommunications Commission
(the C.R.T.C.) for an increase in rates. The
C.R.T.C. held hearings. The plaintiffs participat
ed. The C.R.T.C. gave a decision. There were
petitions by the plaintiffs to the Cabinet, request
ing variation of the C.R.T.C. decision. Bell
Canada replied to the petitions. The Governor in
Council refused to vary the C.R.T.C. decision.
The plaintiffs said the Cabinet decision was
given before they had time to file a reply to Bell.
They also asserted they were not given the sub-
stance of other material before Cabinet, nor an
opportunity to be heard. The plaintiffs brought
action in this Court for, in effect, a declaration
that the Cabinet Orders in Council, refusing to
vary, were invalid.
The Supreme Court of Canada confirmed the
decision of the Trial Judge, given on a motion to
strike, that the statement of claim did not disclose
a reasonable cause of action. (Rule 419(1)(a).)
The Supreme Court described the powers given
under subsection 64(1) as follows, (pages 744-
745):
I turn then to the wording of s. 64 itself. This provision finds
its roots in the Railway Act, 1868, 31 Vict., c. 68, subss. 12(9)
and 12(10), which gave to the Governor in Council the power
to approve rates and tariffs for the haulage of freight by rail. In
1903 the task was given to the Board of Railway Commission
ers. Section 64 assumed its present form in the Railway Act,
1903, 3 Edw. VII, c. 58, s. 44. All these statutes related to
railway rates in the first instance and eventually were extended
to cover telephone and telegraph rates. In the meantime provi
sion had been made for telephone rates and charges in the
private statutes of incorporation of the Bell Telephone Com
pany of Canada, for example the 1892 Bell Telephone Com
pany of Canada Act, 55-56 Vict., c. 67, s. 3:
The existing rates shall not be increased without the consent
of the Governor in Council.
In its present state, s. 64 creates a right of appeal on questions
of "law or jurisdiction" to the Federal Court of Appeal and an
unlimited or unconditional right to petition the Governor in
Council to "vary or rescind" any "order, decision, rule or
regulation" of the Commission. These avenues of review by
their terms are quite different. The Governor in Council may
vary any such order on his own initiative. The power is not
limited to an order of the Commission but extends to its rules
or regulations. The review by the Governor in Council is not
limited to an order made by the Commission inter partes or to
an order limited in scope. It is to be noted at once that
following the grant of the right of appeal to the Court in subs.
(2), there are five subsections dealing with the details of an
appeal to the Court. There can be found in s. 64 nothing to
qualify the freedom of action of the Governor in Council, or
indeed any guidelines, procedural or substantive, for the exer
cise of its functions under subs. (1).
And, at page 748:
Let it be said at the outset that the mere fact that a statutory
power is vested in the Governor in Council does not mean that
it is beyond review. If that body has failed to observe a
condition precedent to the exercise of that power, the court can
declare that such purported exercise is a nullity.
And, at page 755:
It is my view that the supervisory power of s. 64, like the power
in Davisville, supra, is vested in members of the Cabinet in
order to enable them to respond to the political, economic and
social concerns of the moment.
The defendants say the only condition precedent
in the case before me, is that before Cabinet varies
or rescinds a C.T.C. order there must be a C.T.C.
order in existence. In other words, the Governor in
Council cannot make initial or initiating orders of
its own. Provided that condition precedent is met,
then, it is said, the Governor in Council has
observed the jurisdictional boundaries of subsec
tion 64(1).
The plaintiffs say it is not enough there is
merely a C.T.C. order made somewhere, some
time, as a result of procedures under the Railway
Act, R.S.C. 1970, c. R-2, or the National Trans
portation Act; the order sought to be varied must
be timely and relevant; the discretion of the Cabi
net is not completely unfettered; it must deal with
relevant matters only; that in exercising its power
of review under subsection 64(1) the Cabinet can
have no greater jurisdiction than the C.T.C. had in
making the orders under review; if any of the
C.T.C. orders are invalid, unauthorized or spent,
then the Cabinet has no jurisdiction to vary them.
The plaintiffs say there was a reasonably
arguable question, meriting a full trial, that the
Cabinet in this case transgressed its jurisdictional
boundaries.
I go now to the particular grounds alleged in the
statement of claim.
Paragraph 14(a): The plaintiffs argue the
C.T.C. could not vary Orders R-22125 and
R-22346 made in 1976; therefore the Cabinet
could not. Those Orders provided that CN's and
CP's transcontinental services were uneconomic
and likely to continue to be uneconomic. But, the
C.T.C. ordered the railways not to discontinue
those services.
Via came into existence in January, 1977.
C.T.C. Order R-26520, in my view, adopted and
implemented the so-called Final Plan. The Order
then went on to amend the various passenger
schedules and provided for Via to operate on the
tracks of CP and CN.
C.T.C. Order R-30914 made some alterations in
some of the services set out in R-26520.
Order R-31300 is, as I see it, a pulling together
in one Order of all the passenger-train services
existing at the time of the Order. I do not agree
with the contention it created a new passenger-
train service. In respect of this Order it was sub
mitted by the plaintiffs the Order was not made
following applications by the railways pursuant to
subsection 260(2) of the Railway Act; the C.T.C.
had therefore exceeded its jurisdiction in making
this Order, the Governor in Council could there
fore not vary it.
I have said that Order R-31300 is merely a
pulling together into one Order of the existing
passenger-train services. Even if the plaintiffs were
correct that it was somehow the creation of a new
service, the C.T.C. has, in my view, power to act
on its own motion, without the need for an applica
tion by a railway. Section 48 of the National
Transportation Act gives the C.T.C. wide powers:
48. The Commission may, of its own motion, or shall, upon
the request of the Minister, inquire into, hear and determine
any matter or thing that, under this Part or the Railway Act, it
may inquire into, hear and determine upon application or
complaint, and with respect thereto has the same powers as,
upon any application or complaint, are vested in it by this Act.
It was said there was a duty on the C.T.C. to
reconsider the 1976 Orders before the expiry of
five years from their date (see subsection 260(8) of
the Railway Act). The C.T.C. has not done so; the
Orders are therefore spent; the Cabinet could not
vary them; therefore the Cabinet, in effect, by
purporting to discontinue service was legislating or
making its own Order, not reviewing or varying.
I see no force in the plaintiffs' argument that the
1976 Orders were not timely or relevant. I see
nothing in the statutes which provides the Orders
cannot be varied by the C.T.C., or by the Cabinet,
after five years. Further, subsection 64(1) specifi
cally permits the Cabinet to vary or rescind, "at
any time."
It was further contended the 1976 Orders were
made after hearings and evidence as to whether
the passenger services in question were uneconom
ic, and as to whether or not they should be discon
tinued. The Cabinet Order of August 6, 1981,
discontinuing some of those services, was made, it
is further said, without any hearing or, for all
anyone knows, any material similar, but up-dated,
to what was before the C.T.C. in 1976.
My answer is found in the Inuit case. The
Cabinet does not have to go through that kind of
procedure.
Orders R-26520 and R-30914 and R-31300 can,
for substantially the same reasons, be varied under
subsection 64(1).
Paragraph 14(b): The Final Plan was said not to
be an order or decision of the C.T.C.
I disagree.
On a fair reading of Order R-26520, it is clear
to my mind, the Final Plan is incorporated into the
Order. It can therefore be varied under subsection
64(1).
Paragraph 14(c): I adopt, and set out, the
answer made by the Attorney General in his
memorandum of fact and law:
Commission Orders R-26520 and R-30914 are themselves
amended by the Order-in-Council, Schedule XV, paragraph 3
and Schedule XIV respectively. It is clear that the obligation of
the Defendant railway companies is to act in accordance with,
inter alia, those two Orders of the C.T.C. as amended by the
Order-in-Council. The Order-in-Council makes no "purported
attempt to issue directions to VIA and CNR." It does nothing
other than to amend orders of the C.T.C., including Orders
R-26520 and R-30914, as the Governor-in-Council has been
authorized by Parliament to do.
Paragraph 14(d): The essence of this allegation
is that, in the absence of a recent hearing by the
C.T.C., the Cabinet could not have had any up-to-
date material or information on which to base its
decision to discontinue certain passenger-train ser
vices. I see no basis for this assumption.
As was said in the Inuit case there are no
requirements of "procedural fairness" when Cabi
net is exercising its powers under subsection 64(1).
One must assume the decision was made in good
faith; Cabinet, particularly in dealing with the
C.T.C. Order on its own motion
... must be free to consult all sources which Parliament itself
might consult had it retained this function. [Pages 755-756.]
and is given its powers
... in order to enable them to respond to the political, economic
and social concerns of the moment. [Page 755.]
Finally, as to the contention that the discretion
given in subsection 64(1) is not completely unfet
tered. Provided the Cabinet is acting within its
jurisdictional boundaries, its discretion is "com-
plete." I quote once more from the Inuit case at
page 756:
The Governor in Council may act "at any time". He may vary
or rescind any order, decision, rule or regulation "in his discre
tion". The guidelines mandated by Parliament in the case of
the CRTC are not repeated expressly or by implication in s. 64.
The function applies to broad, quasi-legislative orders of the
Commission as well as to inter-party decisions. In short, the
discretion of the Governor in Council is complete provided he
observes the jurisdictional boundaries of s. 64(1).
The statement of claim does not, in my opinion,
disclose a reasonable cause of action based on the
jurisdictional attacks on the validity of the
impugned Order in Council. I am satisfied this
action, based on those grounds, cannot succeed.
There remains the contention that the August
Order in Council is ineffective because it was not
transmitted, for registration, to the Clerk of the
Privy Council within seven days after August 6,
1981.
Counsel for the Attorney General argued the
Order in Council under attack was not a statutory
instrument as defined in the Statutory Instru
ments Act; registration was, therefore, not
required.
I do not intend to decide that issue. I shall
assume the Order in Council was a statutory
instrument.
Section 5 of the statute provides:
5. (1) Every regulation-making authority shall, within seven
days after making a regulation or, in the case of a regulation
made in the first instance in one only of its official language
versions, within seven days after its making in that version,
transmit copies of the regulation in both official languages to
the Clerk of the Privy Council for registration pursuant to
section 6.
The statute does not go on to provide that
failure to transmit within seven days invalidates,
or renders ineffective, a statutory instrument. The
Act does provide that an instrument shall not come
into force, except in certain circumstances, earlier
than the day on which it was registered.
The plaintiffs assert the provisions of section 5
are mandatory; failure to comply has rendered the
Order in Council, although now registered, inef
fective. I do not agree that that is, in this case, the
effect of section 5.
The section, and the statute, is designed to
compel regulation-making bodies to make their
regulations public. But, the provisions requiring
timely transmission to the Clerk of the Privy
Council, do not, in my view, make this Order in
Council ineffective. I apply the principle laid down
in Montreal Street Railway Company v. Norman-
din [1917] A.C. 170, to the situation here. I quote
from the Privy Council opinion at pages 174-175:
The statutes contain no enactment as to what is to be the
consequence of non-observance of these provisions. It is con
tended for the appellants that the consequence is that the trial
was coram non judice and must be treated as a nullity.
It is necessary to consider the principles which have been
adopted in construing statutes of this character, and the
authorities so far as there are any on the particular question
arising here. The question whether provisions in a statute are
directory or imperative has very frequently arisen in this coun
try, but it has been said that no general rule can be laid down,
and that in every case the object of the statute must be looked
at. The cases on the subject will be found collected in Maxwell
on Statutes, 5th cd., p. 596 and following pages. When the
provisions of a statute relate to the performance of a public
duty and the case is such that to hold null and void acts done in
neglect of this duty would work serious general inconvenience,
or injustice to persons who have no control over those entrusted
with the duty, and at the same time would not promote the
main object of the Legislature, it has been the practice to hold
such provisions to be directory only, the neglect of them,
though punishable, not affecting the validity of the acts done.
The statement of claim will be struck out and
the action as against all defendants dismissed.
I have not set out in detail all the submissions
and points advanced by the parties. Nor have I, in
these reasons, dealt with those submissions as fully
as I would otherwise have preferred. The motions
were heard on Monday and Tuesday of this week.
Because of the imminence of the November 15
services cut-back date, I felt I should hand down a
decision, however brief, as quickly as possible, and
while counsel were still present waiting to argue, if
necessary, the interlocutory injunction motions.
Nor have I set out the individual arguments
made by Via, CP and CNR. Without going into
reasons, I cannot see, on the facts alleged in the
statement of claim, a reasonable cause of action
against those three defendants.
I add these comments.
I regret I cannot, in law, see my way clear to
permit this action to proceed in the usual way. I
am aware of the outcry that has arisen in Canada
since this Cabinet decision became public knowl
edge. Judges cannot, as human beings, sit in a
vacuum isolated from current events. I am also
aware of similar litigation pending in this and
other courts. I am further aware of other contem
plated litigation.
But I, as a judge, must apply the law as I
interpret it to be. Parliament gave, in subsection
64(1), certain powers to the Governor in Council.
The Executive chose to act in the way it did here,
rather than have the matter freshly determined by
the C.T.C., or by some other consultive process. As
I see the law, the Governor in Council has the
right to do what it did; it acted within its jurisdic
tion in doing so. It is not my function to say the
Governor in Council perhaps ought to have taken a
different route. Estey J., at pages 756-757 of the
Inuit case, put the matter quite clearly:
The procedure sanctioned by s. 64(1) has sometimes been
criticized as an unjustifiable interference- with the regulatory
process: see Independent Administrative Agencies, Working
Paper 25 of the Law Reform Commission of Canada (1980), at
pp. 87-89. The Commission recommended that
provisions for the final disposition by the Cabinet or a
minister of appeals of any agency decisions except those
requesting the equivalent of the exercise of the prerogative of
mercy or a decision based on humanitarian grounds, should
be abolished (at p. 88).
Indeed it may be thought by some to be unusual and even
counter-productive in an organized society that a carefully
considered decision by an administrative agency, arrived at
after a full public hearing in which many points of view have
been advanced, should be susceptible of reversal by the Gover
nor in Council. On the other hand, it is apparently the judg
ment of Parliament that this is an area inordinately sensitive to
changing public policies and hence it has been reserved for the
final application of such a policy by the executive branch of
government. Given the interpretation of s. 64(1) which I adopt,
there is no need for the Governor in Council to give reasons for
his decision, to hold any kind of a hearing, or even to acknowl
edge the receipt of a petition. It is not the function of this
Court, however, to decide whether Cabinet appeals are desir
able or not. I have only to decide whether the requirements of s.
64(1) have been satisfied.
Any criticism and sanction of the resort to sub
section 64(1), taken in this case, probably lies with
Parliament and, ultimately of course, the electors.
Now, are there any submissions as to costs?
MR. BOWIE: I suppose they should follow the event
my Lord, but I personally would not ask for them.
THE COURT: Well, when you have to think that
this case may go to appeal, all the way, and the
costs may become a much more important factor.
So, I will make the usual order as to costs, and if
the defendants choose not to act on the order, it
will be up to them.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.